This procedure is provided to respond to debt collection claims, without prior notice to the debtor.

Texts: Articles 1405 through 1425 of the Code of Civil Procedure.

Purpose

- The claim must

• have a contractual cause (ex.: security) or
• be the result of a statutory requirement, and
• should be for a specified amount.

- ("Loi Dailly" or Dailly law of 1981) The creditor also has the ability to use this procedure for a payment order if the commitment results from

• the acceptance or the drawing under a bill of exchange
• the agreement to a promissory note, or
• the acceptance of an assignment of receivables.

Competence

Absolute principle: the judge must address his competency.

The petition is brought before the presiding judge of the commercial court, to the extent of his competency (the competence of the presiding judge of the commercial court is identical to that of the court, i.e. ability to understand disputes relating to commitments and transactions among business owners; relating to commercial agreements of all types; and among partners of commercial companies).

The judge is territorially competent in the place where one of the debtors pursued lives. The nature of public order is recognized in Article 1406 of the Code of Civil Procedure any clause to the contrary (clause conferring jurisdiction) shall be deemed unwritten. If a debtor is without a known domicile, or if he or she resides abroad, the payment order procedure cannot be used (unless the debtor domiciled abroad has an office or apartment in France). In terms of joint ownership of property, the creditor may seek referral to the presiding judge of the commercial court of such location.

First phase: the petition

The request is made through petition remitted or addressed to the registry office by the creditor or his agent.

The petition contains, "in addition to the references prescribed under Article 58 of the Code of Civil Procedure,

[Under penalty of non-validity: for individual claimants, their last name, first names, occupation, residence, nationality, date and place of birth; for legal entities, their form, name, registered office and body which legally represents them; the last name, first name and domicile of the person against whom the claim is filed, or, if it is a legal entity, its name and registered office; the subject of the request; the date and the signature of the claimant.]

• the exact amount of the sum claimed
• with calculation of the different elements of the claim
• as well as the grounds of the latter ".

It is accompanied by supporting documents (and the power of attorney of agent, except if such is a lawyer or court bailiff).

The creditor may, in the petition for payment order, request that in the event of opposition, the matter will be immediately sent back to the jurisdiction deeming itself competent (in the case of a jurisdiction contractually designated in an attribution of competency clause to which the creditor has previously availed himself).

Before the commercial court, the cost of the order is advanced by the claimant and deposited at the registry office no later than within fifteen days of the date of the petition, otherwise the latter will cease.

Second phase: the order

The presiding judge examines the documents produced, and assesses whether the request is founded (in whole or in part), or should be.

If he rejects the petition, his decision cannot be appealed by the creditor, but the latter may use a common law procedure a procedure of common law (referral to the court upon the summons of creditors). In case of dismissal, the a petition and the documents produced are returned to the claimant. Please note that, on the contrary, in the case of acceptance (partial or total) of the petition, the documents are temporarily maintained at the registry office.

If the judge only retains part of the petition, his decision is without appeal for the creditor, except for the part not relating to the amount granted and for procedure under common law methods.

Third phase: the notification

As soon as the order containing the payment order for the sum withheld is returned, the registry office shall address a copy certified as complying to the creditor or its agent.

This certified copy must be noticed to the debtor at the initiative of the creditor. The order is void if it has not been noticed within the six months from its date (Art. 1411 of the Code of Civil Procedure).

To be valid, the notice instrument contains, other than the prescribed references for bailiff instruments, a summons to proceed either,

- with payment to the creditor the amount set forth in the order, with interest and registry office expenses the amount of which are specified; or

- to file objectives, resulting in referral to the court of the initial creditor's claim and the entire litigation; incidental requests may be presented during the course of the opposition process.

Under the same penalty, the act of notification sets forth

• the period in which the opposition must be made (one month from the date of receipt of notice),
• - the court before which the matter should be brought,
• the procedures according to which it should be made;

and informs the debtor that he may access the documents produced by the creditor at the registry office and that, in the absence of a statement of opposition within the time frame indicated, he will no longer be able to file an appeal and may be forced by all legal means to pay the amount claimed.

Fourth phase: the enforceable title

The request for insertion of the executory clause shall be filed at the registry office by written or verbal declaration. The order is void if the creditor's claim was not presented within the month following expiration of the time period for opposition (in practice by simple mailing of the notice) (Art. 1423 of the Code of Civil Procedure).

In light of the notification and after noting the absence of opposition, the registry office attaches the executory clause to a copy of the order and sends it to the creditor with the documents he produced.

The debtor may oppose the order for payment.

Form

It is composed at the registry office either by declaration against receipt or by registered mail.

Time frame

Within the month of

the notification if made in person, or

if, if not, (Article 659 of the Code of Civil Procedure Code), of the first document served personally or the first act of enforcement which had the effect of making unavailable all or part of the debtor's property.

When he receives the, the court clerk requests the creditor, without delay, to forward the opposition expenses within a maximum period of fifteen days or else the request shall be longer be valid (it is a deposit) (Article 1425 of the Code of Civil Procedure).

Court proceedings

The judgement is substituted for the payment order.

Note that if none of the parties are present at the hearing, the court shall enter the discontinuation of the proceedings, which renders the payment order void (Article 1419 of the Code of Civil Procedure.

The judgement is rendered in the courts or first or last instance according to the amount of the claim (less than or greater than 4,000 euros).

Click here to obtain a request form for a payment order

The rates presented below do not include the bailiff's fees, to be added in application of legal rules and local practices; cheques should be made payable to the order of the relevant GREFFE DU TRIBUNAL DE COMMERCE, and enclosed with the application.

(1) Opposition not included.